U.S. v. Casillas, 86 M.J. 94

First Principles: Constitutional Matters: Generally

1. to succeed in a facial challenge to a criminal statute, an appellant must establish that no set of circumstances exists under which the statute would be valid

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. if a military judge finds an implied bias challenge to be a close question, the challenge must be granted under the CAAF's liberal grant mandate

Military Justice Personnel: Military Judge: Discretion

1. in this case, where appellant was charged with committing a sexual assault upon another without consent, the military judge did not abuse his discretion in deny appellant's proposed instruction that would have instructed the court members that they were not permitted to consider whether the victim was too intoxicated to consent to sex; such an instruction would not have been an accurate statement of the law; when an accused is charged with a violation of Article 120(b)(2)(A), UCMJ (sexual assault without consent), nothing in the article bars the government from offering evidence of an alleged victim's intoxication to prove the absence of consent; although the government is prohibited from proving the absence of consent by merely establishing that the victim was too intoxicated to consent, here, the proposed instruction was not correct as it would have foreclosed the members from even considering the extent of the victim's intoxication, and neither Article 120, UCMJ, nor case law endorses that result
2. in this case involving sexual assault, the military judge did not abuse his discretion in denying a challenge for cause for both actual and implied bias on a member whose wife had been a rape victim thirty years ago and who had only very rarely discussed the incident with her over three decades; the member explained why he thought he could be an impartial panel member and stated that he would not have a problem telling his wife if the panel were to find the accused not guilty; furthermore, the military judge found the member's body language and demeanor to be clearly indicative of his thoughtfulness of the questions asked and his desire to answer them as candidly as possible; based on the member's candid and credible responses, the military judge did not abuse his discretion in finding that the member had no actual bias; in addition, the military judge separately considered whether the member's participation in the court-martial would damage the public's perception of fairness in the military justice system and concluded that it would not; even considering the liberal grant mandate, the military judge denied appellant's challenge for implied bias, describing the question as not a particularly close call; given that the military judge in this case: (1) placed his observations of the member's body language, demeanor, and credibility on the record, (2) identified that implied bias is an objective standard, (3) explained his reasoning on the record, including why these circumstances would not do damage to this trial, in the eyes of the public in the perception of fairness in our system of military justice; and (4) expressly took the liberal grant mandate into consideration in finding that the implied bias question was not a close call, he did not abuse his discretion in the denying the challenge for cause for implied bias

Military Justice Personnel: Military Judge: Instructions

1. in this case, where appellant was charged with committing a sexual assault upon another without consent, the military judge did not abuse his discretion in deny appellant's proposed instruction that would have instructed the court members that they were not permitted to consider whether the victim was too intoxicated to consent to sex; such an instruction would not have been an accurate statement of the law; when an accused is charged with a violation of Article 120(b)(2)(A), UCMJ (sexual assault without consent), nothing in the article bars the government from offering evidence of an alleged victim's intoxication to prove the absence of consent; although the government is prohibited from proving the absence of consent by merely establishing that the victim was too intoxicated to consent, here, the proposed instruction was not correct as it would have foreclosed the members from even considering the extent of the victim's intoxication, and neither Article 120, UCMJ, nor case law endorses that result
2. in an appellate court's review of implied bias challenges, a military judge who cites the correct law and explains his implied bias reasoning on the record will receive greater deference (closer to the abuse of discretion standard), while a military judge who fails to do so will receive less deference (closer to the de novo standard); accordingly, the more reasoning military judges provide, the more deference they will receive
3. if a military judge finds an implied bias challenge to be a close question, the challenge must be granted under the CAAF's liberal grant mandate

Military Justice Personnel: Court Members: Challenges for Cause

1. if a military judge finds an implied bias challenge to be a close question, the challenge must be granted under the CAAF's liberal grant mandate
2. with respect to whether a panel member who has been exposed to a crime similar to the one to be litigated before him will cause the member to be or appear to be biased, two key principles have recognized: (1) the fact that a member was close to someone who had been a victim of a similar crime is not grounds for per se disqualification; and (2) regardless of a member's prior exposure to a crime, it is often possible for a member to rehabilitate himself before the military judge by honestly claiming that he would not be biased
3. in this case involving sexual assault, the military judge did not abuse his discretion in denying a challenge for cause for both actual and implied bias on a member whose wife had been a rape victim thirty years ago and who had only very rarely discussed the incident over three decades; the member explained why he thought he could be an impartial panel member and stated that he would not have a problem telling his wife if the panel were to find the accused not guilty; furthermore, the military judge found the member's body language and demeanor to be clearly indicative of his thoughtfulness of the questions asked and his desire to answer them as candidly as possible; based on the member's candid and credible responses, the military judge did not abuse his discretion in finding that the member had no actual bias; in addition, the military judge separately considered whether the member's participation in the court-martial would damage the public's perception of fairness in the military justice system and concluded that it would not; even considering the liberal grant mandate, the military judge denied appellant's challenge for implied bias, describing the question as not a particularly close call; given that the military judge in this case: (1) placed his observations of the member's body language, demeanor, and credibility on the record, (2) identified that implied bias is an objective standard, (3) explained his reasoning on the record, including why these circumstances would not do damage to this trial, in the eyes of the public in the perception of fairness in our system of military justice; and (4) expressly took the liberal grant mandate into consideration in finding that the implied bias question was not a close call, he did no abuse his discretion in the denying the challenge for cause for implied bias

Core Criminal Law Subjects: Crimes: Article 120 - Rape and Sexual Assault Generally Offenses on/after 1 Jan 2019 › (b) Sexual Assault

1. in this case, based on the language of the specification -- that appellant committed a sexual act upon the victim by penetrating her vulva with his penis, without her consent, he was charged with violating Article 120(b)(2)(A), UCMJ, that is, sexual assault without consent; Article 120(b)(2)(A), UCMJ, criminalizes the performance of a sexual act upon a victim who is capable of consenting but does not consent
2. Article 120, UCMJ, does not create broadly overlapping offenses that give the government multiple ways to charge a criminal act; Article 120(b)(2)(A), UCMJ (sexual assault without consent), and Article 120(b)(3)(A), UCMJ (sexual assault when incapable of consent due to impairment by a drug or other intoxicant), established distinct offenses with separate theories of liability
3. Article 120(b)(2)(A), UCMJ, only applies to sexual assaults upon victims who are capable of consenting; the government may not charge one offense under one factual theory and then argue a different offense and a different factual theory; thus, the government must choose which Article 120 offense it intends to charge, give the accused notice of that choice in the charge sheet, and pursue that same offense at trial
4. Article 120(b)(2)(A), UCMJ (sexual assault without consent), is not an umbrella offense that includes every other type of sexual assault in which the victim is incapable of consenting; accordingly, there are many circumstances under which Article 120(b)(2)(A), UCMJ, can be validly applied and appellant's facial challenge to the constitutionality of Article 120(b)(2), UCMJ, must fail
5. in this case, the government charged appellant with one offense -- committing a sexual act upon another without consent in violation of Article 120(b)(2)(A), UCMJ; although appellant argues that the government obtained a conviction by arguing a different offense at trial -- committing a sexual act upon a person who is asleep in violation of Article 120(b)(2)(B), UCMJ – that argument fails because the victim awoke during the sexual assault, creating a period when appellant was penetrating her vulva with his penis while she was awake and capable of consenting; this was exactly the offense and factual theory that the government charged, giving appellant sufficient notice of what he needed to defend against; and nothing in Congress's definition of consent in Article 120(g)(7), UCMJ, prohibited the government from proving that -- at least for a brief time after the victim awoke -- appellant committed the charged sexual act upon the victim and that the victim did not consent to that act; accordingly, appellant's as-applied challenge to the constitutionality of Article 120(b)(2), UCMJ, fails
6. in this case, to establish that appellant violated Article 120(b)(2)(A), UCMJ (sexual assault without consent), the government was required to prove: (1) that the accused committed a sexual act upon the victim, and (2) that the victim did not consent to that sexual act; and because Article 120(b)(2)(B), UCMJ, establishes a separate offense for committing a sexual act upon a person who is asleep, the government could not prove lack of consent by establishing that the victim was asleep at the time of the act
7. in this case, viewing the evidence presented at trial in the light most favorable to the government, a rational trier of fact could have found that the government established the Article 120(b)(2)(A) offense beyond a reasonable doubt where prior to falling asleep, the victim never consented to having sex with appellant, and when she awoke during the sexual assault, appellant was penetrating her vulva with his penis while she was awake, a period of time where she had the capacity to consent, but did not

Trial Stages: Merits: Instructions › Generally

1. in this case, where appellant was charged with committing a sexual assault upon another without consent, the military judge did not abuse his discretion in deny appellant's proposed instruction that would have instructed the court members that they were not permitted to consider whether the victim was too intoxicated to consent to sex; such an instruction would not have been an accurate statement of the law; when an accused is charged with a violation of Article 120(b)(2)(A), UCMJ (sexual assault without consent), nothing in the article bars the government from offering evidence of an alleged victim's intoxication to prove the absence of consent; although the government is prohibited from proving the absence of consent by merely establishing that the victim was too intoxicated to consent, here, the proposed instruction was not correct as it would have foreclosed the members from even considering the extent of the victim's intoxication, and neither Article 120, UCMJ, nor case law endorses that result

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. an appellate court reviews the constitutionality of a statute de novo.
2. an appellate court reviews questions of statutory interpretation de novo
3. an appellate court reviews a military judge's decision to deny a requested instruction for abuse of discretion, applying a three-pronged test: (1) whether the requested instruction is correct; (2) whether it is substantially covered in the main instruction already given; and (3) whether it is on such a vital point in the case that the failure to give the instruction deprives the accused of a defense or seriously impairs its effective presentation; all three prongs must be satisfied for there to be reversible error
4. an appellate court reviews the question whether a conviction was legally sufficient de novo
5. the test for legal sufficiency is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt
6. an appellate court reviews a military judge's decision to reject a challenge made on actual bias grounds for abuse of discretion
7. an appellate court's review of implied bias challenges, in contrast to actual bias challenges, is less deferential than abuse of discretion, but more deferential than de novo review; this is because while actual bias is defined as bias in fact, the test for implied bias is an objective one that is only partially based on the military judge's credibility determinations and findings of fact; a military judge who cites the correct law and explains his implied bias reasoning on the record will receive greater deference (closer to the abuse of discretion standard), while a military judge who fails to do so will receive less deference (closer to the de novo standard); accordingly, the more reasoning military judges provide, the more deference they will receive
8. if a military judge finds an implied bias challenge to be a close question, the challenge must be granted under the CAAF's liberal grant mandate